Category: Environmental impact assessment

Good planning relies on good baselines. Determining the correct baseline or fallback position is the vital starting point for determining the effects that a development proposal would have, but is not easy – often involving the need for judgment as to what can be done in any event without planning permission or what the position would be in any event in terms of, for instance air quality, highways movements or the effect on the level of daylight and sunlight that existing properties enjoy.

“Before him the company’s case was that if the appeal was dismissed the appeal site would continue to operate pursuant to a series of admittedly complicated planning permissions which, in any event, would allow a significant number of uses. The appeal was advanced on the basis of these “no project” baselines being in existence. No other grounds were advanced for the grant of planning permission. Essentially the claimant’s case against the appeal was that these baseline activities were not in fact permitted under the permissions operating. Further, for practical reasons what was permitted was limited and in any event could not take place.”

In his decision letter the inspector had identified that it was crucial to the proper determination of the appeal that the effects of generated HGV traffic on the highway network and air quality were calculated “on a precautionary basis and compared with any planning fall-back position from which realistic baseline positions are drawn. It is established law that for a fall-back position to be taken into account it must be legally possible with respect to existing permitted land uses and also likely to occur on available evidence.”

The planning permission for the existing facility did not include any condition restricting the amount of waste that could be treated, but the application for it had indicated a figure of up to 25,000 tonnes per annum for one area, whereas the fallback position being relied upon by the operator at the appeal had assumed that this could be increased to 75,000 tonnes without the need for planning permission. It argued that the 25,000 figure was no limitation (applying the I’m Your Man case, recently approved of by the Court of Appeal in Lambeth LBC v Secretary of State). The claimant argued that the inspector had not considered whether such an increase in the quantity of material treated would have amounted to a material change of use by way of intensification. Retired High Court judge Sir Ross Cranston accepted the claimant’s argument, but also determined, as had been conceded by the Secretary of State, that the inspector had also wrongly noted that the application document referring to the 25,000 tonnes figure had not been incorporated by reference into the permission. Sir Ross Cranston’s summary of the arguments and reasoning is brief. (In the light of the Lambeth case I don’t see how incorporation by reference of the application document is relevant.)

As well as meaning that the inspector had made a legal error in the way that he had considered the fallback position, the judge accepted that the approach that had been taken “has the potential to infect the conclusions regarding the baseline scenarios” for the purposes of assessment of likely significant environmental effects in the environmental impact assessment.

It is a cautionary tale – ensure that you can justify any fallback or baseline position that you rely upon.

Whilst it didn’t matter for the purposes of the judgment, I assume that the proposal was assessed under the 2011 EIA Regulations. The 2017 Regulations are more prescriptive. EIA now needs to include a “description of the relevant aspects of the current state of the environment (baseline scenario) and an outline of the likely evolution thereof without implementation of the development as far as natural changes from the baseline scenario can be assessed with reasonable effort on the basis of the availability of environmental information and scientific knowledge“.

The more far-reaching and longer-term the effects of a project, the more complex the analysis ends up being, as can be seen from the Secretary of State’s decision dated 10 May 2018 to authorise the development consent order applied for by Transport for London in relation to the proposed Silvertown twin-bore road tunnel under the Thames (a scheme which also was promoted under the previous EIA legislation). The task of analysing what would be the position in terms of issues such as congestion and air quality is complex. There will be much focus on his conclusion on air quality effects in particular, namely that “greater weight needs to be placed on the impact of the Development on the zone [for the Greater Urban London area as a whole] rather than at individual receptors. The Secretary of States therefore places weight on the fact that whilst some receptors will experience a worsening in air quality as a result of the Development, overall the Development should have a beneficial impact on air quality and that the Development is not predicted to delay compliance with the [Air Quality Directive] in the timeframes that the Updated [Air Quality Plan], including the zone plan for the Greater Urban London area, sets out as being the quickest possible time.”

We have seen recently how assumptions as to air quality levels can be proved wrong in ways that are unexpected, such as the VW emissions scandal that threw into question the degree to which air quality levels would improve as newer vehicles replaced older ones on the road, or ways which are possibly less unexpected, such as the Government’s delayed compliance with the Air Quality Directive.

Accurate analysis is of course equally necessary with more routine non-EIA projects: that is, accurate analysis both in the relevant technical assessment, whatever it may be, and accurate analysis by the decision maker in taking it into account in reaching a decision. R (Rainbird) v London Borough of Tower Hamlets (Deputy Judge John Howell QC, 28 March 2018) was a recent example of a planning permission being quashed (that the council had granted to itself for an affordable housing development) because of incorrect conclusions being drawn from a report on sunlight and daylight issues, that in itself was held to be significantly misleading in a number of respects, both in relation to the relevant baseline position and in its analysis of compliance with the relevant BRE guidelines that had been incorporated into the council’s local plan. However, every case inevitably turns on its own facts and, as the judge identified, the threshold for challenge is high:

⁃ Baroness Hale in Morge v Hampshire County Council (Supreme Court, 19 January 2011: “reports obviously have to be clear and full enough to enable [members] to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves”

⁃ Lindblom LJ in Mansell v Tonbridge and Malling Borough Council(Court of Appeal, 8 September 2017): “The question for the court will always be whether, on a fair reading of his report as a whole, the officer has significantly misled the members on a matter bearing upon their decision, and the error goes uncorrected before the decision is made. Minor mistakes may be excused. It is only if the advice is such as to misdirect the members in a serious way—for example, by failing to draw their attention to considerations material to their decision or bringing into account considerations that are immaterial, or misinforming them about relevant facts, or providing them with a false understanding of relevant planning policy—that the court will be able to conclude that their decision was rendered unlawful by the advice they were given.

Where the line is drawn between an officer’s advice that is significantly or seriously misleading—misleading in a material way—and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact.., or has plainly misdirected the members as to the meaning of a relevant policy… There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law…. But unless there is some distinct and material defect in the officer’s advice, the court will not interfere.”

⁃ Section 31 (2A) of the Senior Courts Act 1981 provides that the High Court “must refuse to grant relief on an application for judicial review…if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred” unless it is appropriate to disregard this “for reasons of exceptional public interest.”

POW, indeed. The People Over Wind ruling (Court of Justice of the EU, 12 April 2018) is short but striking.

The issue is an important one. There are two steps that a decision maker must follow in determining whether a plan or project is likely to affect a Special Area of Conservation under the Habitats Directive or a Special Protection Area under the Birds Directive (given domestic effect by the Conservation of Habitats and Species Regulations 2017).

The first step is what is commonly called “screening”, although it is not a formal procedural process as there is with EIA. At this stage the question is whether the plan or project is likely to have a significant effect on an SAC or SPA (either alone or in combination with other plans or projects). “Likelihood” is a low threshold – as summarised in People Over Wind:

“In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned“.

If the risk of a significant effect can be excluded at this stage, no further work is required under the Birds or Habitats Directive.

If the risk of a significant effect cannot be excluded, “appropriate assessment” is required to determine that the plan or project will not adversely affect the integrity of the SAC or SPA. If the answer at this stage is other than that it will not, the plan or project is in problems as there are only limited circumstances which would then allow it still to proceed.

Screening out the need for appropriate assessment is important to promoters of plans and projects:

⁃ it reduces the amount of work, time and cost spent, particularly in relation to smaller schemes if the screening stage can be relatively standardised for similar types of development (for instance residential developments in the vicinity of SPAs such as the Thames Basin Heaths).

⁃ paragraph 119 of the NPPF provides that the “presumption in favour of sustainable development (paragraph 14) does not apply where development requiring appropriate assessment under the Birds or Habitats Directives is being considered, planned or determined.” (This is carried over into paragraph 174 of the draft revised NPPF).

The English courts have long taken the position that proposed mitigation measures can be taken into account at the screening stage. Indeed Sullivan J’s ruling almost exactly ten years ago in R (on the application of Hart District Council) v Secretary of State for Communities and Local Government (Sullivan J, 1 May 2008) was crucial in establishing the practicality of local authorities relying on the funding or provision of Suitable Alternative Natural Greenspace (SANGS) rather than requiring appropriate assessment in relation to each housing project that might lead to an increase in people wishing to use the nearby SPA for recreational purposes. He held that there was no reason why a commitment to provide mitigation in the form of SANGs could not be taken into account at screening stage:

“…if the competent authority is satisfied at the screening stage that the proponents of a project have fully recognised, assessed and reported the effects, and have incorporated appropriate mitigation measures into the project, there is no reason why they should ignore such measures when deciding whether an appropriate assessment is necessary. Under Regulation 48(2), the competent authority may ask the proponent of a plan or project for more information about the plan or project, including any proposed mitigation, not merely for the purposes of carrying out an appropriate assessment, but also in order to determine whether an appropriate assessment is required in the first place. If for any reason the competent authority is still not satisfied, then it will require an appropriate assessment. As a matter of common sense, anything which encourages the proponents of plans and projects to incorporate mitigation measures at the earliest possible stage in the evolution of their plan or project is surely to be encouraged“.

That has remained the domestic law, as can be seen in R (Champion) v North Norfolk District Council (Supreme Court, 22 July 2015), where the reason why the permission was quashed was that at the screening stage the mitigation measures relied upon had not been fully identified.

However, the European Court of Justice has now driven somewhat of a bulldozer through this approach in its ruling this month in relation to a reference from the Irish High Court in relation to proceedings which had been brought by the People Over Wind campaign group and campaigner Peter Sweetman (not his first visit to the Luxembourg court, see Sweetman v. An Bord Pleanala (CJEU, 11 April 2013)) to seek to quash permission for a project to lay a cable connecting a wind farm to the electricity grid, potentially affecting rivers constituting a habitat for the “Nore pearl mussel”. According to the judgment, the consultants’ screening report for the project concluded as follows:

“a) In the absence of protective measures, there is potential for the release of suspended solids into waterbodies along the proposed route, including directional drilling locations

b) With regards to [the Nore pearl mussel], if the construction of the proposed cable works was to result in the release of silt or pollutants such as concrete into the pearl mussel population area of river through the pathway of smaller streams or rivers, there would be a negative impact on the pearl mussel population. Sedimentation of gravels can prevent sufficient water flow through the gravels, starving juvenile [Nore pearl mussels] of oxygen.’

18 It is apparent from the file before the Court that ‘protective measures’ were also analysed by that report.

19 Subsequently, on the basis of that report, the following recommendation was drawn up for Coillte by the ‘programme manager’:

As set out in detail in the … appropriate assessment screening report, on the basis of the findings of that report and in light of the best scientific knowledge, the grid connection works will not have a significant effect on the relevant European sites in light of the conservation objectives of the European sites, alone or in combination with the Cullenagh wind farm and other plans or projects, and an appropriate assessment is not required. This conclusion was reached on the basis of the distance between the proposed Cullenagh grid connection and the European sites, and the protective measures that have been built into the works design of the project.’”

The Irish High Court referred the following question to the European Court of Justice for a preliminary ruling:

“Whether, or in what circumstances, mitigation measures can be considered when carrying out screening for appropriate assessment under Article 6(3) of the Habitats Directive?’”

Even for the CJEU the resulting judgment is brief.

“…it is settled case-law that Article 6(3) of the Habitats Directive makes the requirement for an appropriate assessment of the implications of a plan or project conditional on there being a probability or a risk that the plan or project in question will have a significant effect on the site concerned. In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned (judgment of 26 May 2011, Commission v Belgium, C‑538/09, EU:C:2011:349, paragraph 39 and the case-law cited). The assessment of that risk must be made in the light inter alia of the characteristics and specific environmental conditions of the site concerned by such a plan or project (see, to that effect, judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 45 and the case-law cited).”

“35 As the applicants in the main proceedings and the Commission submit, the fact that, as the referring court has observed, measures intended to avoid or reduce the harmful effects of a plan or project on the site concerned are taken into consideration when determining whether it is necessary to carry out an appropriate assessment presupposes that it is likely that the site is affected significantly and that, consequently, such an assessment should be carried out.

36 That conclusion is supported by the fact that a full and precise analysis of the measures capable of avoiding or reducing any significant effects on the site concerned must be carried out not at the screening stage, but specifically at the stage of the appropriate assessment.

37 Taking account of such measures at the screening stage would be liable to compromise the practical effect of the Habitats Directive in general, and the assessment stage in particular, as the latter stage would be deprived of its purpose and there would be a risk of circumvention of that stage, which constitutes, however, an essential safeguard provided for by the directive.

38 In that regard, the Court’s case-law emphasises the fact that the assessment carried out under Article 6(3) of the Habitats Directive may not have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the protected site concerned (judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 50 and the case-law cited).”

It is a frustrating judgment. There are so many unasked and unanswered questions arising from it, for instance:

1. Why does reference to mitigation measures presuppose that without the measures there is likely to be a significant effect?

2. Why is it assumed that there can be no certainty as to the effectiveness of proposed mitigation measures?

3. Why is there no dividing line between mitigation on the one hand and avoidance/reduction on the other (a distinction raised by Sullivan J in Hart, where he didn’t necessarily accept that the SANGs mechanism amounted to mitigation as opposed to avoiding effects in the first place) and where is the dividing line between mitigation and components of the project itself? If an inherent part of the project (say soundproof walls) also serves a mitigation function, surely it is not to be ignored. In which case, what is included in the project and what is mitigation that is not an integral or inherent part of the project is a crucial question.

It is going to be interesting to see how UK practice adapts in relation to the ruling and how soon the issue comes before the courts. Will attempts be made to distinguish it (that is possible) or will plan and project promoters take a more cautious approach of proceeding more frequently to appropriate assessment? Will this be the sort of issue where, post- Brexit, the domestic courts will begin to take an increasingly differing stance to Luxembourg?

There is no reference to the EIA Directive in People Over Wind but it will be one to watch. It would be quite a step, given that the EIA Regulations specifically require that a negative screening opinion or direction should “state any features of the proposed development and measures envisaged to avoid, or prevent what might otherwise have been significant adverse effects on the environment“!

Lastly, on the subject of screening under the Habitats and Birds Directives, R (Mynnydd y Gwynt Limited) v Secretary of State (Court of Appeal, 22 February 2018) is another recent case worth reading, which demonstrates the difficulties of challenging any decision by a competent authority that appropriate assessment is required. The claimant, promoting a wind farm by way of a DCO, was perhaps entitled to feel rather sore. National Resources Wales had first taken the view that appropriate assessment was not required but then changed its position, saying that more information was required. The examiner was on balance satisfied but in the light of NRW’s concerns advised the Secretary of State that she might decide that an appropriate assessment was necessary, which indeed in due course she did. Back to the drawing board.

The Secretary of State’s determination was challenged, alleging that she had erred by:

“1) Requiring certainty in relation to each element of the data, instead of using the available information and making a reasoned judgement, always taking the precautionary approach.

2) Reaching an inconsistent conclusion about the in-combination level of risk to the red kite population in this SPA to those reached in relation to other Mid-Wales windfarm proposals.

3) Not referencing or showing that she had considered the Appellant’s December 2014 response to NRW’s concerns about survey methodology”

The court rejected the challenge:

“For this appeal to succeed, it must be shown that the judge was wrong not to have concluded that the Secretary of State’s decision was unlawful on Wednesbury principles – that she had taken account of irrelevant matters or failed to take account of relevant matters, or that her decision was so unreasonable that no reasonable authority could have made it.

For my part, I am not persuaded that the Secretary of State’s decision was unlawful, nor that the judge’s careful review of the decision was wrong. The Secretary of State was required to exercise a judgement at the junction between two important social objectives – renewable energy and species protection. She was faced with a conflict of views between her statutory conservation adviser and her examiner. She asked for further assistance: NRW responded, the Appellant did not. I accept that the Secretary of State might have been persuaded by the arguments that found favour with the examiner, but in the overall circumstances I consider that she was entitled to accept the advice of NRW and conclude that she did not have the information necessary to enable her to grant the application.”

Whilst it may be frustrating for clients and professional teams alike, these cases demonstrate the care that needs to go into the promotion strategy for any scheme (including the definition of the project itself) where there is a potential impact on an SAC or SPA, and the importance of resolving matters with the relevant conservation bodies – as well as the degree of scientific work required, which often feels like an endless search to prove a negative which may ultimately be unprovable. Mitigation or not, life isn’t as certain as the legislation requires it to be.

I just wish I understood the rationale for that People Over Wind ruling. If you do I would be delighted to hear it.

So now we have, without any great surprises, what was first to be the Great Repeal Bill, then the Repeal Bill and now is the European Union (Withdrawal) Bill. It comes alongside extensive Explanatory Notes as well as a Memorandum justifying the use of delegated powers in the Bill .
This is a very narrowly defined blog post, asking myself one question: What does the Bill tell us in England about what will happen to EU law based legislation such as the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 once we reach the “exit date” (defined in the Bill as a date to be appointed by a minister but in practice to be 29 March 2019 or earlier, due to service by the Government of its Article 50 notice on 29 March 2017)? I have confined myself to England: there are additional complexities ahead for the devolved administrations.
The EIA Regulations are EU-derived domestic legislation, as defined in the Bill, deriving as they do from the EIA Directive ie Directive 2011/92/EU as amended in 2014 by Directive 2014/52/EU.
Clause 2(1) of the Bill provides:“EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day. ”

So the Regulations will remain in force unchanged post exit day.
For the avoidance of doubt clause 5(1) provides:“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”

So any change to environmental protection that is made following exit date cannot be challenged on the basis that it is contrary to EU law. Legislation excluding say the construction of a specific infrastructure project or type of infrastructure from EIA, or weakening its operation? There would no longer be any recourse to the Court of Justice of the EU (CJEU). But that would be the effect of leaving the EU in any event, so hardly needs to be spelt out.
(Of course, the Government will need to ensure that any such legislation did not breach other international obligations such as the Espoo Convention and Aarhus Convention – where breaches are far more difficult to challenge by a complainant, whether in the domestic courts or in any international forum)
At present, in interpreting EU-derived legislation, our domestic courts have to apply EU law principles, having regard to decisions of the CJEU. After exit day, this will no longer be the case, in that there will be no requirement to have regard to post exit day decisions. Clause 6(1) provides:“A court or tribunal

(a) is not bound by any principles laid down, or any decisions made, on or after exit day by the European Court, and

(b) cannot refer any matter to the European Court on or after exit day. ”

Clause 6(2) makes it clear that a court may do “if it considers it appropriate to do so” but does not have to. So, (1) there will be uncertainty as to whether to bring post exit day CJEU rulings or advocate-general opinions before the domestic court to assist with interpretation (and so in practice they will be trawled out) and (2) CJEU jurisprudence is likely slowly to take a different direction to that of our domestic courts. Not straight-forward!
For a period from the coming into law of the Bill and two years after exit day, the Government will be going through all EU-law derived legislation, with the objective of making it continue to work post Brexit. Clause 7(1) provides:
“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law,

arising from the withdrawal of the United Kingdom from the EU. “

The justification in the accompanying memorandum: “Retained EU law will contain thousands of failures and deficiencies. This power enables UK ministers and the devolved authorities to make corrections in time for exit to ensure a functioning statute book. ”

Clause 7(6) contains some protections:
“But regulations under this section may not—

(a) impose or increase taxation,

(b) make retrospective provision,

(c) create a relevant criminal offence,

(d) be made to implement the withdrawal agreement,

(e) amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or

(f) amend or repeal the Northern Ireland Act 1998 (unless the regulations are made by virtue of paragraph 13(b) of Schedule 7 to this Act or are amending or repealing paragraph 38 of Schedule 3 to the Northern Ireland Act 1998 or any provision of that Act which modifies another enactment). “

The memorandum says this by way of example: “The impact of not making such changes would include inadvertently removing environmental protections. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 require an environmental impact assessment of certain applications for planning permission. They refer to “other EEA States” in a number of places, mainly in the context of development likely to have significant transboundary environmental effects. A correction amending the references to “other EEA States” to “EEA States”, would make it clear that the requirement on transboundary consultation continues to function on exit as it does now. This would remove uncertainty and help ensure that an important piece of environmental protection law continues to operate effectively. “

I referred to obligations arising under other international obligations. Clause 8(1) provides:“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent or remedy any breach, arising from the withdrawal of the United Kingdom from the EU, of the international obligations of the United Kingdom.”

The memorandum more generally seeks to justify the breadth of use of delegated ministerial powers under the Bill:“i. Time: The two year timetable for exit is provided for in Article 50 of the Treaty on the European Union. Therefore, the UK needs to be in a position to control its own laws from March 2019, which is why the UK Government and devolved administrations need to take a power so they can act quickly and flexibly to provide a functioning statute book. The complexity of identifying and making appropriate amendments to the converted and preserved body of law should not be underestimated. There is over 40 years of EU law to consider and amend to ensure that our statute book functions properly on our exit from the EU. According to EUR- Lex, the EU’s legal database, there are currently over 12,000 EU regulations and over 6,000 EU directives in force across the EU.2 We are not yet in a position to set out in primary legislation how each failure and deficiency should be addressed, nor would it be practical to do so…”

“ii. Practicality: The power will be exercised by UK ministers and the devolved authorities, enabling them to make the necessary corrections to the statute book required to make the law function effectively in their own field of expertise and competence. Making all corrections on the face of the Bill, at this stage, would not be practical.

iii. Flexibility: Many of the potential deficiencies or failures in law arise in areas in which the UK is considering pursuing a negotiated outcome with the EU. The UK must be ready to respond to all eventualities as we negotiate with the EU. Whatever the outcome, the UK Government and devolved authorities, with the appropriate scrutiny by Parliament and the devolved legislatures, must be able to deliver a functioning statute book for day one post-exit.”

So in the case of environmental impact assessment, are we likely to see any early substantive changes? In my view we won’t. What we will see is amendments made so as to seek to ensue that the Regulations still work in legal terms post exit day and there may be arguments as to whether some of those amendments go beyond what is required to achieve that aim. But the substantive changes (which I’m sure will come) will be for a later stage. The explanatory notes to the Bill say this: “The Bill does not aim to make major changes to policy or establish new legal frameworks in the UK beyond those which are necessary to ensure the law continues to function properly from day one. The Government will introduce separate primary legislation to make such policy changes which will establish new legal frameworks.” (para 14).
This is a commitment that we need to keep the Government to. No changes beyond what is necessary without primary legislation.

Well the Government cut it fine but the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 were finally laid before Parliament on 19 April 2017 and will come into force on 16 May 2017, along with equivalent regulations in relation to infrastructure planning, water resources, electricity works, marine works, and land drainage improvement works.
The regulations give effect in England to the EU’s Directive 2014/52/EU on the assessment of the effects of certain public and private projects on the environment, which was required to be brought into force by member states by that magic 16 May 2017 date.
My 8.10.16 blog post summarises the main implications of the Directive and expresses some doubt as to whether the Government would meet the deadline. I’m glad that the deadline has been achieved, as inconsistency between EU and domestic requirements as to environmental impact assessment would have made a difficult area, already full of legal trip hazards, even more precarious to navigate.
The new regulations apply to all EIA development projects unless before 16 May 2016:
– an environmental statement has been submitted;

– a request for a screening opinion or direction has been submitted (in which case the screening is carried out under the 2011 regulations but any EIA will be under the new regime); or

– a request for a scoping opinion or direction has been submitted.

The changes introduced by the new Regulations are not unduly onerous (and have been flagged by way of the 2014 amending directive for some time now) but there is still a small window for those scheme promoters who would prefer to work to the previous 2011 Regulations. I can see that even small changes in required methodologies may give rise to complications on multi-stage projects where it would be easier, for consistency and to avoid re-doing work, for further environmental statements to continue to address the 2011 rather than 2017 requirements.
So what are the changes? Colleagues have prepared a black-lined version for internal Town purposes that shows all of the changes as between the 2011 and 2017 versions, which has been invaluable in working through the detail. There has been a lot of tweaking and necessary updating but the main substantive changes are as follows:
Reg 4(2) – there are now express references to assessment needing to include effects on human health, biodiversity, land and climate.
Reg 4(4) – significant effects to be assessed include “the expected significant effects arising from the vulnerability of the proposed development to major accidents or disasters that are relevant to that development”.
Reg 4(5) – “The relevant local planning authority or the Secretary of State must ensure that they have, or have access as necessary to, sufficient expertise to examine the environmental statement”.
Reg 6 – additional information is now required in requests for screening opinions.
Reg 6(6) – LPA can agree to extend response to screening opinion request beyond the current three weeks period to up to 90 days and can extend the period further in exceptional circumstances if it gives reasons and the date when the delayed determination is now expected.
Reg 7(5) – equivalent extended deadlines for the Secretary of State in relation to requests for screening directions.
Reg 18(4)(a) – an environmental statement “must be based on the most recent scoping opinion or direction issued (so far as the proposed development remains materially the same as the proposed development that was subject to that opinion or direction.” (Currently there is no requirement for an environmental statement to take on board all of conclusions of the scoping opinion or direction).
Reg 18(4)(c) – an environmental statement must “be prepared, taking into account the results of any relevant UK environmental assessment, which are reasonably available to the person preparing the environmental statement, with a view to avoiding duplication of assessment”.
Reg 18(5) – “In order to ensure the completeness and quality of the environmental statement—
* (a) the developer must ensure that the environmental statement is prepared by competent experts; and

* (b) the environmental statement must be accompanied by a statement from the developer outlining the relevant expertise or qualifications of such experts.”

Reg 19(6) – EIA application must not be determined until at least 30 days (was previously 14 days) after copies of the environmental statement were served on consultation bodies.

Reg 20(2)(f) – the LPA must make the environmental statement available online for at least that 30 day period.
Reg 26 – the decision maker must reach a “reasoned conclusion on the significant effects of the proposed development on the environment”, taking into account their examination of the environmental information submitted and, where appropriate the decision maker’s “own supplementary examination”, “integrate that conclusion into the decision” and “if planning permission or supplementary consent is to be granted, consider whether it is appropriate to impose monitoring measures”.
Reg 26(4) – “In cases where no statutory timescale is in place the decision of the relevant authority or the Secretary of State, as the case may be, must be taken within a reasonable period of time, taking into account the nature and complexity of the proposed development, from the date on which the relevant authority or the Secretary of State has been provided with the environmental information”.
Reg 27 – where there has to be both an EIA and a Habitats Regulations assessment, the two must be co-ordinated.
Reg 29 – where planning permission is granted for EIA development, the decision must set out the reasoned conclusion of the decision maker on the significant effects of the development on the environment, any conditions which relate to the likely significant effects of the development on the environment, any measures envisaged to avoid, prevent, reduce and, if possible, offset likely significant adverse effects on the environment and any monitoring measures considered appropriate.
Reg 30(1)(b) – the consultation bodies are to be informed of the decision in respect of any EIA application.
Reg 30(1)(d)(iii) – information must be available for public inspection as to the results of consultations undertaken and information gathered.
Reg 35 – “planning authorities in the exercise of their enforcement functions, must have regard to the need to secure compliance with the requirements and objectives of the Directive.”
Reg 64 – objectivity and bias:
“(1) Where an authority or the Secretary of State has a duty under these Regulations, they must perform that duty in an objective manner and so as not to find themselves in a situation giving rise to a conflict of interest.
(2) Where an authority, or the Secretary of State, is bringing forward a proposal for development and that authority or the Secretary of State, as appropriate, will also be responsible for determining its own proposal, the relevant authority or the Secretary of State must make appropriate administrative arrangements to ensure that there is a functional separation, when performing any duty under these Regulations, between the persons bringing forward a proposal for development and the persons responsible for determining that proposal.”

Schedule 2 – the threshold for industrial estate development projects is reduced from 5 hectares to 0.5 hectares.
Schedule 3, para 3 – more detail as to the types and characteristics of potential impacts to be taken into account in screening Schedule 2 development.
Schedule 4, para 1 – more detail as to the necessary description of the development in an environmental statement.
Schedule 4, para 2 – the environmental statement must include a “description of the reasonable alternatives (for example in terms of development design, technology, location, size and scale) studied by the developer, which are relevant to the proposed project and its specific characteristics, and an indication of the main reasons for selecting the chosen option, including a comparison of the environmental effects” (in place of the more lax “outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for the choice made, taking into account the environmental effects”).
Schedule 4, para 3 – it must also include a “description of the relevant aspects of the current state of the environment (baseline scenario) and an outline of the likely evolution thereof without implementation of the development as far as natural changes from the baseline scenario can be assessed with reasonable effort on the basis of the availability of environmental information and scientific knowledge.”
Schedule 4, para 10 – it must also include a “reference list detailing the sources used for the descriptions and assessments included in the environmental statement”.
The explanatory memorandum published with the regulations states that there “are around 500 – 600 environmental statements submitted each year in England through the planning system, representing about 0.1% of all planning applications. There are between 10 – 20 applications for a development consent order under the nationally significant infrastructure planning regime subject to EIA each year”.
Much of the work of a planning lawyer these days to seek to ensure that environmental impact assessment processes are carried out in a legally correct manner so as not to lead to the unnecessary risk of legal challenge. The new regulations will do nothing to reduce that risk – indeed, particular care will need to be taken in relation to these new requirements. Red pens at the ready…
Simon Ricketts 29.4.17
Personal views, et cetera

(with special thanks to Town colleagues, Spencer Tewis-Allen and Rebecca Craig).

The Ashdown Forest in East Sussex is unique. Lindblom LJ recently described it as follows:“Ashdown Forest contains one of the largest continuous blocks of lowland heath in south-east England. The [Special Area of Conservation] which extends to about 2,700 hectares, comprises both Northern Atlantic wet heaths with Erica tetralix and European dry heaths. It is a “European site” under regulation 8 of the Habitats regulations. The [Special Protection Area] was designated mainly for the protection of two species of bird: the Nightjar and the Dartford Warbler, both included in Annex 1 of EU Directive 79/409/EEC on the conservation of wild birds, as amended. Ashdown Forest is also designated a Site of Special Scientific Interest (“SSSI”), for its heaths, birds, invertebrates, reptiles and amphibians, including the Great Crested Newt.”

The Ashdown Forest was of course also the inspiration for A.A. Milne’s Winnie the Pooh:

“Anyone who has read the stories knows the forest and doesn’t need me to describe it. Pooh’s Forest and Ashdown Forest are identical.” (Christopher Milne)

This honeypot is particularly vulnerable to the indirect effects arising from development in two respects:

– nitrogen deposition caused by motor vehicles

– impacts from recreational use of the forest
It can be particularly difficult to model the levels at which those effects are likely to arise. Any standardised thresholds are bound to be simplistic and to err either on the side of unnecessary restriction of development or on the side of risking significant harm to the forest. But we can’t embark on a huge multi-disciplinary research project every time any change is proposed – and, even then, will the results be accurate?

Whether we are in or out of the EU, I assume that we all accept that there are some particularly special places such as Ashdown Forest that require longterm protection due their nature conservation value and which can be harmed in a number of ways by the incremental effects (direct and indirect) of development? Equally, I’m sure we all recognise that a balance has to be struck in the level of survey work and assessment that local planning authorities and developers should do to determine whether development will acceptable?

It would never be easy to construct a legal regime that provides a fair and efficient process for determining what survey work and assessment is required and where the dividing line is between what is acceptable and unacceptable. As both a Special Area of Conservation and Special Protection Area, the Ashdown Forest is protected under the EU’s Habitats and Birds Directive, transposed in England and Wales by the Conservation of Habitats and Species Regulations 2010.
In basic summary, if it cannot be proven, beyond reasonable scientific doubt, that there will be no significant effect on the site either alone or in combination with other plans or projects, “appropriate assessment” is required, namely consideration of the impacts on the integrity of the European site, either alone on in combination with other plans and projects, with regard to the site’s structure and function and its conservation objectives. If the assessment determines that there will be adverse impacts which cannot be mitigated or avoided by alternative solutions, the plan or project can only proceed in extremely limited circumstances. Appropriate assessment can be a significant undertaking. Relevant for what follows, policy makers have come up with a pragmatic mechanism of requiring contributions by developers to Suitable Alternative Natural Greenspace (“SANGs”) to provide for areas to come forward that will take recreational pressure away from protected sites as a standardised form of mitigation, often thereby avoiding the need for individual, development by development, appropriate assessment.
Additional levels of protection, not just relevant to European designated sites, are provided by the Strategic Environmental Assessment Directive (in relation to the formulation of plans or programmes whose policies may give rise to significant environmental effects) and by the Environmental Impact Assessment Directive (in relation to certain categories of development projects which may give rise to significant environmental effects). Each has a screening stage, by which the need for detailed assessment work can be avoided if it can be shown that significant environmental effects are unlikely to arise.
The Great Repeal Bill will operate post Brexit so as to continue to give legal effect in the UK to all of these regimes until such time as Parliament reviews each of them. The Government published on 30 March its White Paper, Legislating for the United Kingdom’s withdrawal from the United Kingdom. It contains this details-free passage on environmental protection:“The Government is committed to ensuring that we become the first generation to leave the environment in a better state than we found it.

The UK’s current legislative framework at national, EU and international level has delivered tangible environmental benefits, such as cleaner rivers and reductions in emissions of sulphur dioxide and ozone depleting substances emissions. Many existing environmental laws also enshrine standards that affect the trade in products and substances across different markets, within the EU as well as internationally.

The Great Repeal Bill will ensure that the whole body of existing EU environmental law continues to have effect in UK law. This will provide businesses and stakeholders with maximum certainty as we leave the EU. We will then have the opportunity, over time, to ensure our legislative framework is outcome driven and delivers on our overall commitment to improve the environment within a generation. The Government recognises the need to consult on future changes to the regulatory frameworks, including through parliamentary scrutiny. ”
That may sound benign, but let’s keep an eye on that reference to ensuring “our legislative framework is outcome driven”. “Too much red tape’ appears to be the knee jerk reaction of many politicians to EU environmental legislation, viz recent jabs at protected species such as the great crested newt and at SANGs.
So have we got the balance right in our current legislation? Ashdown Forest has in the last two years given us four court rulings (three at Court of Appeal level) which in different ways identify the difficulties and complexities that inevitably arise in practice. If the sensitivity of a site such as the Ashdown Forest is a given, how would any other system better regulate the competing interests at play and provide an effective regime for determining forensically what are often complex and difficult environmental and ecological scientific issues?
Chronologically (if we ignore famous proceedings that ran from 1876 to 1882 as to the extent of commoners’ rights over the forest versus the rights of a landowner, the 7th Earl De La Warr), the cases have been as follows:

This was a challenge by local landowners, including in fact the 11th Earl De La Warr, to policies in the Wealden Local Plan, including a requirement for SANGs provision in relation to housing developments within 7 kilometres of the forest. The Court of Appeal quashed the requirement, holding “with a degree of reluctance” that the council and the national park authority had failed to consider reasonable alternatives to the 7 kilometres cordon, in breach of the requirements of the Strategic Environmental Assessment Directive, overturning Sales J’s first instance ruling.
Sales J had also rejected the landowners’ challenge to a cap on housing numbers in the plan, which had been justified on the basis of seeking to ensure that traffic movements did not increase beyond 1,000 AADT (annual average daily traffic flows on any road in the forest, equivalent to a 1% increase), treated by the authorities and Natural England as a threshold beyond which appropriate assessment would be required under the Habitats Regulations. The landowners were not given permission to appeal that ground and so that housing numbers policy stands. Secretary of State v Wealdon District Council (Court of Appeal, 31 January 2017)
This was a challenge by Wealden District Council to an inspector’s decision to allow an appeal against the refusal of planning permission for the construction of 103 dwellings, 42 of them to be provided as affordable housing, and the provision of 10 hectares of SANGs and public open space, on land at Steel Cross, a small settlement to the north of Crowborough. The site is about 2.4 km from the edge of the forest. The inspector had found that there would have been a need for appropriate assessment despite the 1,000 AADT threshold not having been reached, but for proposed mitigation in the form of financial contributions towards heathland management. The challenge had succeeded at first instance before Lang J and the Court of Appeal had to address a number of submissions from the opposing parties based on SAC and SPA issues:
– did the inspector adopt too strict an approach in concluding that there was no need for an appropriate assessment?
– was he wrong to assume that heathland management to mitigate the effects of nitrogen deposition would be carried out under a strategic access management and monitoring strategy (“SAMMS”)?

– did he fail to take into account evidence given for the council on the efficacy of heathland management?

The Court of Appeal held that the inspector’s approach to the potential relevance of even relatively small additional traffic numbers had not been wrong but he had failed to justify why, in the face of contrary evidence from the council, he considered that heathland management would amount to adequate mitigation. Furthermore:“As Mr Price Lewis submitted, the inspector did not explain how he thought the financial contributions in the section 106 obligation were in fact going to be translated into practical measures to prevent or overcome the possible effects of nitrogen deposition to which he had referred, as well as funding the SAMMS projects which would tackle the potential effects of recreational use. He did not say what he thought was actually going to be done, by whom, and when, in implementing the “habitat management” upon which his conclusion on the need for “appropriate assessment” was predicated. That conclusion depended on his judgment that, with mitigation, including heathland management to mitigate the effects of nitrogen deposition, the proposed development, together with other proposals, was not likely to have significant effects on the European site. Such mitigation, as he made clear, was essential to his “precautionary approach”. So if there was any real doubt about the requisite heathland management coming forward, his conclusion that an “appropriate assessment” was not required would, to that extent, be undermined. It was necessary for him to establish with reasonable certainty that the relevant mitigation, including heathland management, would actually be delivered. But he did not do that. He did not identify a solid proposal for heathland management, relevant to this proposed development, to which there was a firm commitment on the part of those who were going to carry it out. His conclusions in paragraphs 68 and 71 of his decision letter, and in paragraph 105, clearly depended on the concept that the “contributions to SAMMS” in the section 106 obligation “would” – as he put it – actually be used, in part, to fund “projects” of “habitat management”. These projects would involve measures, such as cutting and grazing to reduce, “offset” or “outweigh” the effects of nitrogen deposition attributable to this development in combination with other proposals, including “additional eutrophication”. But which “projects” he had in mind is obscure.”
The planning permission was quashed. R (DLA Delivery Ltd) v Lewes District Council (Court of Appeal, 10 February 2017)
This case raises a number of issues in relation to neighbourhood planning (see my 19.2.17 blog post, Five Problems With Neighbourhood Plans ) but for the purposes of this blog post the relevant question before the Court of Appeal was whether the neighbourhood plan for Newick, approximately 7 km from the forest, contravened the Strategic Environmental Assessment Directive in that the need for strategic environmental assessment had been screened out, relying on on the emerging sustainability appraisal work carried out by Lewes District Council and the national park authority. The claim had been brought by a promoter of a scheme which had not been allocated for development in the plan. If SEA had been found to be required, this would have given it the opportunity to promote its site as a reasonable alternative for those allocated, given that it was outside the magic 7 km radius of the forest. Whilst the court found errors in the council’s reasoning for arriving at a negative screening opinion, they were not such as to vitiate the decision and the plan was not quashed. Wealden District Council v Secretary of State, Lewes District Council and South Downs National Park Authority (Jay J, 20 March 2017)
The forest lies within Wealden’s and the national park authority’s respective administrative areas. Lewes District Council’s boundary is around 5-6km from the forest. This was a challenge by Wealden District Council of a joint core strategy prepared by Lewes and the national park authority. Wealden claimed that Lewes and the national park authority had acted unlawfully in concluding, on advice from Natural England, that the joint core strategy would not be likely to have a significant effect on the SAC in combination with the Wealden core strategy.
Natural England had advised that if the expected increase in AADT flows on any route within 200m of a protected site was less than 1,000 cars per day or 200 HGVs per day, equivalent to less than a 1% increase in traffic, then appropriate assessment was not necessary. The expected increase turned out to be 190 AADT, but the expected increase of 950 generated by proposals in the Wealden core strategy was ignored. The defendants tried to argue before the court that the 1,000 AADT threshold was “sufficiently robust and precautionary to cover any likely scenario of in-combination effects. The amounts of nitrogen dioxide in play are so small that they are effectively de minimis and of neutral effect”.
The judge held that Natural England’s approach was “plainly erroneous”. There was “no sensible or logical basis” for excluding the Wealden core strategy from account” and a “clear breach” of the Habitats Directive.
A couple of additional points to note:
– The challenge was to policies in the joint core strategy, but (unlike the national park authority) Lewes had adopted it more than six weeks before the challenge had been brought. Accordingly only the policies relating to the provision of new housing in the national park authority’s area were quashed.
– In an extreme case of nominative determinism, Natural England’s expert advisor, as in a number of these cases, was one Marion Ashdown.

Controversy relating to Ashdown Forest is likely to continue if a recent Daily Mirror piece on the Mid-Sussex local plan inspector’s 20 February 2017 preliminary conclusions on housing requirements is anything to go by…
So what do we conclude from all of this?
Even once we agree that complex eco-systems such as Ashdown Forest need protection, the dividing line between an appropriate precautionary approach to house-building in the vicinity and inappropriate over-protection is really hard to draw, and it is equally difficult to apply triage so as to reduce the amount of detailed assessment work required.
The necessary predictions draw upon scientific disciplines such as chemistry, statistics, ecology and psychology as much as they are about planning or law.
Perhaps there is room for greater clarity. After all, it is concerning when even the Government’s statutory advisory body can be “plainly erroneous” in its approach. And it is concerning that so many complex cases are reaching the courts – and leading to the quashing of decisions and policies. This hardly gives a certain basis for house building.
But don’t think that this is ever going to be easy or that the problems mainly lie with the nature of the EU directives from which the legal principles flow. We will reinvent the wheel at our peril.

After all that, perhaps there is one thing on which we can all agree?

It is more fun to talk with someone who doesn’t use long, difficult words but rather short, easy words like “What about lunch?” (A.A. Milne)

It’s easy for a planning lawyer to summarise R (Boot) v Elmbridge Borough Council (Supperstone J, 16 January 2017). The High Court confirmed what we already know from paragraph 89 of the NPPF – that “the provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it” is not inappropriate development, but that conversely, if harm is caused to the openness of the Green Belt, even limited harm, the development is inappropriate and permission should be refused save in very special circumstances.
The court duly quashed a planning permission granted on 26 January 2016 for the “Elmbridge Sports Hub” – a proposed athletics stadium, ‘league’ football pitch and training pitches (grass and artificial) for Walton Casuals FC, Walton and Hersham FC and Walton Athletics club to replace their current facilities, on a former landfill site in Waterside Drive, Walton-on-Thames.

However, scratch beneath the surface of any case and there are usually some interesting factors.

This is not a developer-led proposal. It’s being promoted by Elmbridge Borough Council, on land that it owns. The development is proposed to be funded by the sale by the Council, for the development of 52 homes, of Walton and Hersham FC’s present ground at Stompond Lane.
Most developers would not take the risk of starting construction work ahead of their permission being free from legal challenge. However, Elmbridge embarked on construction on 21 March 2016, despite the scheme already at that stage having become significantly controversial. Indeed the claimant’s solicitors, renowned claimant firm Richard Buxton & Co, were already on board for objectors and had previously scored an early blow by securing an EIA screening direction from the Secretary of State in July 2015, when the application had already initially gone to committee, requiring environmental impact assessment to be carried out. The Secretary of State ruled:“Whilst this is a finely balanced case, the proposal does raise concerns to suggest the potential for significant environmental impacts through surface disturbance of the former landfill site, uncertainty about the extent of the contamination of the site and the potential for gas migration to both the River Thames and nearby residential properties.”
Why did development start when the permission was still at risk, presumably when proceedings had already been served, or at least a pre-action protocol letter? I don’t know any of the details but I do note that the local elections took place a little afterwards in May 2016. Was this at all relevant?
Rolling ahead to 2017, by the time that the permission was quashed, the construction project was significantly advanced. With the developer a local planning authority, responsible for planning enforcement, this is surely hardly a comfortable position.
Image from Get Surrey website

Elmbridge had tried unsuccessfully to delay the court hearing, fixed for 6 December 2016, to allow a second planning application to be determined, for a revised version of the scheme, a request that was rejected by Ouseley J in November.
The second application eventually went to committee on 17 January 2017, the day after the first permission was quashed and on the basis of a detailed officers’ report, resolved to approve it (perhaps no surprise there). Having delayed the scheme first on an EIA point and secondly on the council’s flawed approach to green belt policy, no doubt objectors will be looking for their next line of attack.
So a straight-forward ruling by Supperstone J but the situation on the ground is plainly a mess. How does a local planning authority get itself into this sort of position? To what extent is this about financial or political imperatives and, against the backdrop of a construction project in mid flow (one dreads to think of the financial consequences under its construction contract if the authority now pauses or abandons the project), how easy was it for members to determine the second application with open minds but on the contrary how difficult it may be for objectors to prove to a court that minds were already made up?
Simon Ricketts 21 January 2017
Personal views, et cetera

Deadlines, deadlines.
The EU’s 2014 amending directive on environmental impact assessment has to be transposed by member states into domestic law by 16 May 2017.
Given that Theresa May has announced that Article 50 of the Lisbon Treaty will be invoked by the UK government by the end of March 2017, which would see us out of the EU by the end of March 2019, does the 16 May 2017 deadline matter?
The Scottish Government is currently consulting on transposition, with a consultation deadline of 31 October 2016. The Welsh Government is consulting with a consultation deadline of 11 November 2016.
I have seen no signs of any equivalent work underway for England or Northern Ireland, despite the lengthy lead-in period to the transposition process if it is to be done in accordance with the UK government’s own guidance .
This can only be deliberate but is going to lead to problems for developers and LPAs alike. What does the amending Directive change?
The changes are significant. For instance:
– More information is to be provided with requests for screening opinions, requiring more analysis and work at an earlier stage

– Mitigation measures considered at the screening stage need to be specified and retained in the final development proposals

– Reasoning for screening opinions and directions are expressly required

– If a scoping opinion is obtained, the ES must comply with it

– The Environmental Statement becomes an ‘EIA Report’

– It will need to be prepared by ‘accredited and technically competent experts’

– Decision makers in reaching decisions will need to decide whether the environmental information is up to date or whether further updated information is required

– The decision maker will need to decide whether to impose monitoring obligations to cover the implementation and management of the project

– The minimum public consultation period in relation to the EIA report will be 30 days (whereas the UK minimum period is of course 21 days).

It is not of course unknown for a member state to be late in transposing a Directive, but there are real consequences. The state can be fined for its failure to transpose. But, of more specific relevance to developers and LPAs, the failure to transpose the Directive by the deadline can in some circumstances lead to grounds of challenge for a claimant when, for instance, seeking to challenge a planning permission on the basis that the LPA has not complied with the requirements of the Directive. The Directive applies where projects have not been screened or scoped – or the subject of an ES submitted – by 16 May 2017.
So, pre 16 May 2017, the 2011 Regulations will continue to apply (as long as you have screened, scoped or submitted) and post 16 May 2017 it would be prudent to comply with the substance of the amending Directive.
But what will happen once we have left the EU? Well of course we have been promised the ‘Great Reform Bill’ which seems designed to retain UK legislation that transposes EU legislation in some holding pen, from which laws will be taken out individually over time to be amended or repealed. Accordingly, even after March 2019 (or whenever our exit from the EU turns out to be) the 2011 EIA Regulations (as amended from time to time) will continue to apply until further notice.
In my view it would be a mistake to envisage any substantial repeal of environmental impact assessment legislation, as opposed to attempts no doubt at streamlining.
Accordingly, the stream of EIA case law will undoubtedly continue. Some 2016 highlights:R (XY) v Maidstone Borough Council (Deputy High Court Judge Rhodri Price-Lewis QC) – held that negative screening opinion was lawful – on the facts no requirement to treat proposal for gypsy site as inevitably part of a larger development proposal given other similar proposals in the area. R (Jedwell) v Denbighshire County Council (Hickinbottom J, 16 March 2016) – reasons for negative screening opinion not given within a reasonable period of time but permission not quashed. R (Licensed Taxi Drivers Association) v Transport for London (Patterson J, 10 February 2016) – challenge to London’s east-west cycle superhighway failed – determination of adverse environmental effects was for the LPA.SEA
The SEA Directive is fully transposed into law in England by the Environmental Assessment of Plans and Programmes Regulations 2004 – also destined for the Great Repeal Bill holding pen.
In the meantime the cases continue. According to a Landmark Chambers update we await the outcome of R (RTE Built Environment Limited) v Cornwall Council in relation to the St Ives Neighbourhood Plan, with its proposed second homes ban, following a hearing on 6 October 2016.
More selfishly, a number of us who have contributed chapters to the forthcoming book by Greg Jones QC and Eloise Scotford, The Strategic Environmental Directive: A Plan For Success? are hoping that it has a long and relevant shelf-life….
Simon Ricketts 8.10.16
Personal views, et cetera